By Jeffrey Toobin
Review By Ronald Goldfarb
Most law and court watchers are familiar with the work of Jeffrey Toobin, who is a regular essayist for The New Yorker, a frequent legal analyst for CNN, and the author of prior books about high–visibility legal disputes. He is a very good storyteller and an informative analyst—better in print, which lends itself to thoughtful exploration, development, and analysis, than on television where perforce he is limited to brief sound bites. In The Oath, a follow–up to his interesting The Nine: Inside the Secret World of the Supreme Court, Toobin proposes the thesis that the careers of President Obama and Chief Justice John Roberts are linked and “embody the larger conflict” being fought in the highest arenas over the interpretation of the Constitution. While I think his thesis is a questionable stretch, his narrative of the stories behind the notorious recent cases is so interesting that this book is worth reading.
Take, for example, the story he opens with. It was known at the time that in administering the oath at then President–elect Obama’s inauguration, Chief Justice Roberts accidentally used words that were not in the script. How the administration of the presidential oath of office evolved historically was “haphazard,” Toobin reports, so “the precise words of the oath varied over time.” With no constitutional or authoritative source, were the particular words used by the chief justice a “historical curiosity,” and unimportant because the oath, according to the author, is not mandatory? Or was it, as some lawyers in the new White House worried on Day One, more than a distraction, but potentially an imperfection of fundamental importance?
White House and U.S. Department of Justice lawyers agonized on opening day when, along with all the ceremonies, the new president issued executive orders and signed laws. They concluded that it was important “to redo the oath and get it right,” lest his first acts as chief executive be questioned. Justice Roberts realized he had muffed the brief words he’d memorized, and agreed to come to the White House to privately redo the administration of the oath with the correct wording. Toobin’s telling of the insider wheelings and dealings surrounding the event are engaging and provide impressive evidence of his many sources who allow him to tell stories that never would have been known.
Another example of Toobin’s skillful ability to synthesize the social and legal history of an important Supreme Court case is his analysis of the notorious Citizens United v. Federal Election Commission decision and its impact on “corporate power, freedom of speech, and the intersection of law and politics.” Reading about it pales in comparison to Toobin’s story, serialized in The New Yorker and expanded in several chapters in The Oath. He reveals Justice Roberts’ behind-the-scene strategizing that expanded the reach of the case.
President Obama had nothing to do with Citizens United, which detracts from Toobin’s theme, though not the power of his writing. Toobin weaves in biographical stories about the justices, the legal history leading to the decision, and the politics of the Court’s decision making. His is first–rate and informative writing.
But whether the stories Toobin tells so well also substantiate his central thesis that the chief justice and the president are both “apostle[s] of change” who “usher in a new understanding of the Constitution, with dramatic implications for both the law and the larger society,” is questionable. The raison d’être for Toobin’s book, he says, is that Obama and Roberts “see the Constitution in different ways” that now impact upon the direction of constitutional law.
What is clear is Toobin’s ability to tell intriguing stories, and also to present sound overviews of important cases and the jurisprudence they represent without dumbing down the legal analysis. An example is his story behind the notorious District of Columbia v. Heller case dealing with gun control. I know the inside story from the man behind the case (not Dick Heller, the selected plaintiff, but Robert Levy, the chair of the board of directors of Cato Institute who dreamed up the case and managed its route to new constitutional law), and Toobin’s story rings true. Toobin’s characterization of the politics, history, and constitutional law surrounding this very important decision is smart and informative. His conclusion that Justice Antonin Scalia’s majority opinion was “an improvisation designed to reach a policy goal” is ironic. Scalia argues that the Constitution is “dead,” not a living document, and Toobin shows how perverted Scalia’s theory is by using the justice’s own words and reasoning in Heller. Rather than an example of his repeated preaching that the Constitution is “textualist” and “originalist,” Scalia’s opinion demonstrates that the Constitution is what the justices say it is: always dressed up in chameleonic jurisprudence to suit the justices’ predilections and to reach their political conclusions. (Bush v. Gore is a classic example.)
Toobin’s book provides ample case histories to prove the conclusion that in recent history “A small group of activists took a fringe and constitutional interpretation, injected their considerable passion, intelligence, and financial resources, and nearly [I’d say conclusively] brought their ideas to success.” But to go where Toobin goes, placing this important constitutional change in the context of an ideological battle between Chief Justice Roberts and President Obama, may ultimately prove accurate, but presently is an unlikely surmise.
Toobin’s final chapter is about the Supreme Court’s ruling in the Patient Protection and Affordable Care Act. This notorious, highly politically charged case was the third in what Toobin calls the “legal trilogy” of the Court’s questionable immersion in the political thicket: Bush v. Gore, Citizens United, and the health care reform law. Everything we knew and the new information Toobin provides here demonstrate Justice Roberts’ ideological constitutional commitments. But Toobin’s chapter, along with much of what we’ve seen in the past four years, shows that Obama is not pushing a constitutional agenda. Quite the contrary. From his choice of U.S. Solicitor General to replace Elena Kagan, to his nomination of Kagan to the Court, to his failure to fill federal court seats or even appoint nominees, let alone progressive judges, to his even passive promotion of the health care act itself, it should be clear that the president was not on any ideological mission comparable to Justice Roberts’.
Justice Roberts provided the surprising fifth vote to uphold the health care act because, Toobin concludes, the chief justice “felt obligated to protect the institutional interests of the Court, not just his own philosophical agenda.” The president’s role in health care reform was one of political pragmatism, not constitutional law, which may be acceptable, but it doesn’t fit the metaphorical battle with the chief justice that Toobin suggests in his theme. Toobin does remind readers that the founding fathers were “practical statesmen, not metaphysical philosophers.”
Again, Toobin’s “dish” about leaks by Supreme Court clerks, the justices’ votes in conference, the political pressures on Justice Roberts, and even his criticism that Justice Scalia in this case “marked his transition from conservative intellectual to right–wing crank” (Toobin’s general treatment of the justices is quite balanced) make fast and interesting reading.
It is accurate to note that Roberts and Obama both are powerful and charming intellectuals, with backgrounds from Chicago and Harvard Law School. But to link them in history, as Toobin does, in creating a conflicting trajectory of the Constitution with profound implications for America, is quite premature. Indeed, Justice Roberts’ lifelong history portrays the conservative activist justice he has become, and this book makes that case.
But President Obama’s constitutional makeup is not yet clear, and doesn’t presently seem nearly as ideological as Justice Roberts’. Toobin’s story about Obama’s choice of Sonia Sotomayor to fill the seat of the retiring Justice David Souter is a good example of my point. Obama’s choice was narrowed to Sotomayor and Seventh Circuit Court of Appeals Judge Diane Wood, a former University of Chicago Law School colleague who Obama liked, and who is a vigorous defender of the living Constitution, a fighter in the ideological tug–of–war with the Roberts–Scalia–Alito–Thomas wing of the Court. Wood had argued that “the text of the Constitution tends to reflect broad principles, not specific prescriptions,” and that the founding fathers did not expect static constructions of their work, but presumed flexibility in later generations. Sotomayor was a fine choice, and one who Obama saw as a better builder of coalitions on the Court, as naïve a notion about the Court as it was to expect collaboration beyond partisanship in Congress. Obama appointed the first Hispanic justice, an excellent political choice, but as Toobin himself concludes, “it was an Obama–like performance—progressive by implication, biographical rather than ideological.” When the president appointed Kagan to fill Justice John Paul Stevens’ seat, again he passed over his friend, Judge Wood, who was the alternative finalist, a liberal who was liked by her conservative colleagues and an advocate for the views and positions of the more progressive minority of the Supreme Court.
It is more likely that Obama’s time in office will alter the social landscape through his political, not constitutional, avenues. Fine if he does, but it is not supportive of Toobin’s thesis. Nonetheless, for his lively stories about the Court’s recent key cases, The Oath is a book worth reading. If the arc of Toobin’s book doesn’t hold, all within it is so good that the failure is not critical.
The Supreme Court and McCarthy–Era
Repression: One Hundred Decisions
By Robert M. Lichtman
University of Illinois Press, 2012
Review By James Srodes
With a few exceptions, most university presses are models of inefficiency exacerbated by pricing policies so outlandishly greedy that only the author’s mother is tempted to buy.
And that is a shame because attorney and McCarthy–era historian Robert M. Lichtman has produced a thoroughly researched, accessibly written book that should be read by any layman or law professional who is concerned with how easily the constitutional protections of our most cherished civil liberties can be set aside during times of perceived threats to our national security. Yet at $60 a copy, the University of Illinois Press virtually has ensured that the copies it has produced will remain safely in the warehouse. Shame on them.
Lichtman’s focus is the series of U.S. Supreme Court decisions handed down during the period when Fred Vinson and, thereafter, Earl Warren were chief justices. The cases involved persons accused of either being members of the Communist Party USA (CPUSA) or of espousing their doctrines.
This book has a special relevance for today as well. All the reader has to do is mentally insert the words “Islam” or “terrorist” where Lichtman has written “communist,” and one can hear the echoes of that period of national insanity of 60 years ago in the pronouncements of Bush– and Obama–era security officials when they justify warrantless wiretaps and selective suspension of habeas corpus.
Lichtman acknowledges that the so-called McCarthy era is something of a misnomer since it began in the late 1940s before Sen. Joseph McCarthy became a national figure, and lasted for years after his death in 1957. Its distinction, he says, is that the period “was the longest of the several periods of political repression that punctuate American history.”
Nor is his use of the phrase “political repression” hyperbole. His definition is spot on:
Repression in a democracy does not fit the classic mold: it is majoritarian, administered by elected officials, and supported by public opinion. Repeatedly however, the verdict of history, decades later, has been that the perceived internal dangers that generated repression in America were exaggerated and the repressive measures used unwarranted. There is now a consensus, for example, that the nation’s security did not require the internment of more than one hundred thousand ethnic Japanese—seventy thousand were American citizens—during World War II. Less than a decade earlier, in 1933, President Franklin D. Roosevelt granted a full pardon to persons convicted under World War I–era sedition statutes.
There is a long history of such officially sanctioned periods where civil protections have been set aside. As early as 1798, when the threat was from a revolutionary France, the Alien and Sedition Acts allowed President John Adams to jail his critics. Nor was the Great Emancipator Abraham Lincoln shy about using military courts to prosecute civil dissent. Whether one talks about the “Red Scare” of 1919–1920 or the crackdown on Vietnam War protesters, there has always seemed to be a good excuse to turn the copy of the Bill of Rights to the wall if need be.
But Lichtman brings two often overlooked facets about the McCarthy era back to our consideration to help explain why, even after 60 years, it can continue to spark angry debate over its meaning in the context of how safe American citizens can feel behind the paper protections of the Constitution.
One point is that there was a very real security threat to the United States in the decade immediately following Roosevelt’s death and the end of World War II. Hardly had a weary American public taken a breath after the defeat of the Axis powers than it faced an abrupt plunge into what is known as the Cold War, but which in reality was a very hot confrontation. Not only was Joseph Stalin’s Soviet Union gobbling up entire nations in Eastern Europe, but China, which we had been assured was a stable democracy in the making, suddenly fell under the bizarre thrall of Maoist tyranny. The Korean War, the disclosures of widespread spy operations conducted by not one but two Soviet spy services, and the revelation that U.S. citizens with access to government secrets had supplied the Russians with critical data on the atomic bomb and other war material all combined to raise serious concerns about just how safe we were.
But the other point is that this is not really what the McCarthy repressions focused on. The two most remembered controversies—the conviction of U.S. State Department official Alger Hiss for perjury and the execution of Julius and Ethel Rosenberg for passing on electronic, radar, as well as atomic secrets—certainly had arguably fatal flaws in their conduct, even though later evidence would confirm their guilt beyond doubt.
Those two episodes aside, as debatable they remain, the real emphasis of that awful era was to crush dissent. Specifically, the target of choice was CPUSA and its host of equally ineffectual allies, or indeed anyone who dared to criticize the American way of life as it existed in the 1950s. Lichtman reminds us that part of the political backlash to the Supreme Court’s school desegregation decision in Brown v. Board of Education centered on charges of communist efforts to mix the races.
Lichtman also makes clear what we always have known about the Supreme Court, that it is an institution susceptible to the pressures of public opinion and that the character of the individual justices really does determine the character of the Court’s decisions.
Starting with the loyalty oath cases that sprang from the Taft–Hartley Act of 1947 and continuing through blacklists, deportations, and contempt of Congress convictions, Lichtman skillfully leads us through the landmark cases. He sets the end of the era at the point in 1962 when President John F. Kennedy appointed both Byron “Whizzer” White and Arthur Goldberg to the Court. The uproar over Vietnam was less than five years away.
Do without a couple of lunches to be able to afford this book; it is a worthwhile expenditure for it brings home how thin the paper wall of the Constitution can be during a time of national stress.
James Srodes is a Washington journalist and author of On Dupont Circle: Franklin and Eleanor Roosevelt and the Progressives Who Shaped Our World.